Civil and Administrative Tribunal New South Wales Medium Neutral Citation: GHI v ABC trading as DEF [2018] NSWCATAD 8 Hearing dates: 25 October 2017 and on the papers Date of orders: 10 January 2018 Decision date: 10 January 2018 Before: A Scahill, Senior Member Decision: The Applicant Mr GHI is to pay the Respondent Ms ABC $3200 within 21 days of the publication of this decision by way of costs under section 60 of the Civil and Administrative Tribunal Act 2013. The Tribunal orders pursuant to section 64(1) (a) of the Civil and Administrative Tribunal Act 2013 that the names of Mr GHI, Ms ABC and DEF not be published in any reporting of the matter – other than to the parties themselves. Catchwords: Costs; Confidentiality Legislation Cited: Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Cases Cited: Australian Careers Institute Pty Ltd v Australian Skill Quality Authority (2016) 70 AAR 276 Aydemir v Redegalli [2011] NSWADT 198 CEU v University of Technology Sydney [2017] NSW CA 280 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Cripps v G & M Dawson [2006] NSWCA 81 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 George v Commissioner of Police, NSW Police Force [2013] NSWADT 76 IMS FX Services Pty Ltd v ASIC (2016) 70 AAR 197 Kanan J.M v Australia Post and Telecommunications Union [1992] FCA 539;43 IR57 Langley v Niland and Anor (1981) 2 NSWLR104 State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 Category: Costs Parties: Applicant for costs: Ms ABC Respondent to application for costs: Mr GHI Representation: Applicant: Ms Gabriel, solicitor, ELG Legal Respondent: Mr GHI self-represented File Number(s): 2017/290410 Publication restriction: The Tribunal orders pursuant to section 64(1) (a) of the Civil and Administrative Tribunal Act 2013 that the names of Mr GHI, Ms ABC and DEF not be published in any reporting of the matter – other than to the parties themselves. Judgment Application for Costs and Confidentiality orders 1. This decision deals with an application for costs made by Ms ABC under section 60 and an application for confidentiality made by Mr GHI under section 64 of the Civil and Administrative Tribunal Act 2013 (CATA). Background to the matter 1. Mr GHI complained to Anti-Discrimination Board (ADB) in January 2017 that he had been discriminated against on the grounds of his sex (male) in the refusal of goods and services by Ms ABC trading as DEF. Ms ABC, through DEF, runs dance classes. Mr GHI had been advised by letter in January 2016 by the proprietor of DEF, Ms ABC, that he should not return to classes because of his behaviour. 2. Mr GHI's complaint was declined after investigation by the Acting President of the ADB on 24 August 2017 as lacking in substance. 3. The letter stated: "The reasons for my decision is that, having considered all of the information provided to the Board by the parties, I have concluded that there is insufficient information to support the complainant's claims that one of the reasons why he was refused the service provided by the Respondent was because of his gender. The Respondent has provided sufficient reasons other than gender for her decision to refuse the service." 1. Mr GHI applied to the Tribunal for leave to proceed with the complaint under section 96 of the Anti-Discrimination Act 1977 (ADA) on 18 Sept 2017. 2. The leave hearing was scheduled on 25 October 2017. At approximately 10.30pm on 24 October 2017, Mr GHI advised Ms ABC by email that he was not proposing to proceed with the leave application. 3. Mr GHI attended at NCAT on 25 October 2017. Ms ABC attended and was represented by a solicitor, Ms Gabriel of ELG Legal. Mr GHI confirmed that he did not wish to proceed with the leave application and wished to withdraw it. The Tribunal dismissed the leave application. Ms ABC's solicitor filed and served a costs application before the Tribunal on the day. 4. The Tribunal set a timetable for Mr GHI to file and serve submissions in reply to the application for costs and for Ms ABC to file and serve any response. That timetable finished on 22 November 2017. 5. Mr GHI filed a document dated 15 November 2017 in the Tribunal. The document had 3 parts. 1. A request for a confidentiality order; 2. A response to the application for costs; and 3. A confirmation that he was not seeking to resume his complaint against Ms ABC. 1. Mr GHI's submission to the Tribunal stated that he had not served a copy of his reasons for requesting a confidentiality order on Ms ABC. He had served a redacted document on Ms ABC. Mr GHI had not complied with the Tribunal's direction in that he had not served all documents relating to costs submissions on Ms ABC. The Tribunal was unable to consider the application for confidentiality given the requirements of procedural fairness. 2. The Tribunal then wrote to both parties on 28 November 2017 and set a further timetable. Mr GHI was to file and serve any application for confidentiality by 1 December 2017 and Ms ABC was to file and serve any submission in reply by 8 December 2017. 3. The Tribunal received a new submission seeking confidentiality orders from Mr GHI dated 1 December 2017. The Tribunal received a submission in reply to an application for confidentiality from Ms ABC on 7 December 2017. 4. Ms ABC opposed the making of confidentiality orders. Each of Ms ABC's further submissions sought an increasing amount of costs. Ms ABC also sought orders from the Tribunal that Mr GHI be restrained from making an application for a leave hearing and that he be restrained from corresponding with Ms ABC. Submissions of Applicant for costs 1. Ms ABC made the following submissions in relation to costs. 2. Section 60 of the Civil and Administrative Tribunal Act 2013 (CATA) provides that each party to proceedings in the Tribunal is to pay the party's own costs. The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. 3. Sub-section 60 (3) sets out factors (a) to (g) that the Tribunal may take into account when determining whether to award costs. The Tribunal may also determine by whom costs are to be paid and to what extent they are to be paid and may also order that costs be assessed. 4. Costs include the costs of or incidental to proceedings in the Tribunal and costs of or incidental to proceedings giving rise to the application as well as the costs of or incidental to the application. Relevant case law 1. Ms ABC referred to the findings of Santow JA in Cripps v G & M Dawson [2006] NSWCA 81 in relation to the words "special circumstances". "for this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of serious unfairness is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration." 1. Ms ABC also referred to CEU v University of Technology Sydney [2017] NSW CA 280 at 4: "to establish special circumstances, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional." 1. Ms ABC then referred to the following factors set out under section 60(3) of CATA as establishing special circumstances. Sub section 60 (3)(c) "no tenable basis in fact" 1. Mr GHI had not provided any facts or facts from which an inference could be reasonably drawn to support his claim. There had always been an innocent explanation for the refusal of service. He had failed to establish any grounds under the first limb of section 24 of the ADA. He had failed to provide facts from which a reasonable inference could be drawn when an innocent explanation was available on the facts. See Dutt v Central Coast Area Health Service [2002] NSWADT 133 at 70. Subsection 60 (3)(d) – "the nature of the proceedings" 1. Ms ABC submitted that the proceedings by Mr GHI were based upon a misconceived notion of rejection. The original notice to Mr GHI was clear and unambiguous on its face that the reason for the refusal of service was his behaviour, not any other matters. Mr GHI had abused the facility and services provided to him from the Anti-Discrimination Board. It appears in his evidence at page 38 that even by 10 July 2017, the ADB were on notice that Mr GHI's complaint was not founded in a sex discrimination case and the ADB reminded Mr GHI to "focus on the how I allege the Respondent has discriminated me on the basis of sex." Mr GHI's own evidence on pages 55 to 65 shows his obsession with Ms ABC and his obsession with his "move away from engineering to performing" see page 60 and "I need to learn more about camera poses – it will also help my acting career, when sprung by paparazzi"- see page 63. This type of behaviour is confirmed in Ms ABC's evidence at page 23 where Mr GHI made comments to Ms ABC requesting he perform on the morning show with Ms ABC and that she play his vocal rendition of Maniac. Subsection 60(3)(e) – the complaint is lacking in substance 1. A complaint is said to be lacking in substance when it can be demonstrated there exists no factual basis for the allegation or that the complaint is not reasonably arguable see Langley v Niland and Anor (1981) 2 NSWLR104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at 22. Mr GHI had not been able to demonstrate a factual basis for his complaint. Subsection 60 (3)(g) any other matter that the Tribunal may consider relevant. 1. On 24 October 2017 at 10:37 PM, Ms ABC received an email advising her that Mr GHI was no longer pursuing the matter. Ms ABC had been distressed and confused by this. Ms ABC had incurred costs in her defence. These costs could have reasonably been avoided if Mr GHI had filed his notice of discontinuance in a timely manner. Calculation of Costs sought 1. Ms ABC presented a tax invoice from her solicitor ELG legal which referred to a costs agreement dated 10 October for fees due from 10 October to 25 October 2017. The amount was a total of $3050.50 including GST. 2. The Tribunal notes that the fee agreement refers to an estimate at paragraph D that professional fees were estimated as follows: "If the matter settles on 25 October 2017 and is dismissed: up to and including the preliminary hearing $1000-$2000." 1. The relevant timesheet shows that initial instructions were taken from Ms ABC on 7 October 2017. Further work was performed on 16 October, 23 October and 25 October 2017. 2. The hourly rate for a solicitor was quoted as $275 including GST. Mr GHI's submissions in response to costs application 1. Mr GHI filed a submission dated 15 November 2017. He denied that there were any special circumstances under section 60 of the CATA warranting the award of costs against him. 2. Mr GHI said that as his complaint had been withdrawn before the leave hearing, there was no basis on which the Tribunal could draw a conclusion under section 60(3) (c) about the relative strengths of the claim. The costs application should not be turned into a leave hearing. 3. Mr GHI stated that there was a tenable basis in law for his complaint. That is why the ADB had accepted it in whole under section 89B of the Anti-Discrimination Act. It was also because of this acceptance that he had been given the right to appeal to NCAT. 4. Mr GHI referred to the letter sent from the ADB on 3 March 2017 seeking Ms ABC's response to the complaint. That letter stated that the complainant's allegations appear to fall within sections 28 and 33 of the Act. Subsection 60 (3)(d) – the nature and complexity of the proceedings 1. Mr GHI contended that the arguments set out by Ms ABC were arguments that could only be assessed as part of a leave hearing. Due to the withdrawal of his complaint, the leave hearing had not taken place. The costs application could not be used as a substitute for a leave hearing. 2. Ms ABC had referred to the misconceived notion of rejection. Mr GHI denied that he had engaged in any bad behaviour and that this was constructed around negative sexist male stereotypes. Mr GHI asserted that these accusations were false and were a standard technique that bullies used to cause an individual to be shamed and ostracised by falsely accusing them of bad behaviour. The underlying prejudices become apparent once the fraudulent nature of such false accusations is revealed. The forensic GPS location, communication and video evidence that Ms ABC did not know that Mr GHI possessed when she submitted her statements to the ADB were damning in revealing the fraudulent and defamatory nature of her statements and other supporting statements. The matter did not relate to a rejection. He would not have complained if Ms ABC had said to him "I do not like you, don't come to my class." 3. Mr GHI denied that the ADB's comment that "he should focus on how he alleged the Respondent had discriminated against him" indicated that the ADB considered his complaint to have no substance. This was in fact a normal step to the ADB's complaint handling process. This had been confirmed to him when he spoke to a conciliation officer who had explained the ADB's process in investigating complaints. The instruction to focus was a helpful tip from the ADB. It should not be misinterpreted to be an implicit assessment of his complaint. Subsection 60(3)(e) - whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance 1. This could only be assessed as part of a leave hearing and this had not occurred. Although the Acting President had stated in the letter declining the complaint of 24 August 2017 that she was satisfied that it was lacking in substance, Mr GHI did not agree with this conclusion. Further the Acting President left some leeway in her reasoning, stating that there was "insufficient information". This left the door open to additional information being presented at a later stage that could remedy this perceived insufficiency. Although the Acting President had stated that Ms ABC had provided sufficient reasons for her actions, the Acting President had not made a judgement on whether those reasons would have a basis in fact and would stand up to scrutiny. In this respect, the forensic GPS location, communication and video records that Ms ABC did not know that Mr GHI possessed, were damning in revealing the fraudulent and defamatory nature of her statement and other supporting statements she submitted. 2. Mr GHI referred to an email to Ms Gabriel, Ms ABC's solicitor, dated 14 November 2017 as setting out the full reason for his appealing to NCAT. This email referred to the ADB decision to decline his complaint; inclusion of material relating to another complainant in correspondence from the ADB; and his entitlement to bring a leave application under the Act. 3. Mr GHI then referred to the principles set out by the Supreme Court in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] to [38]. Mr GHI emphasised that the cautious approach appears to discourage hasty refusal of leave. He also emphasised the terms "unfettered and is not confined" in point 2. Mr GHI considered these as increasing the probability that he would prevail in the leave hearing. Subsection 60(3)(f)- whether a party has refused or failed to comply with the duty imposed by section 36 (3) 1. Mr GHI noted that Ms ABC's representative had not raised this issue. Subsection 60 (3)(g) - any other matter that the Tribunal considers relevant 1. Mr GHI stated that he had not expected that Ms ABC would have any legal expenses. NCAT describes itself as being designed for people to represent themselves and as providing a low-cost accessible and efficient means of resolving a dispute. He had not asked for any monetary damages that would provide any rational economic basis for Ms ABC expending $3000. It was not unusual to have a claim declined by the ADB but subsequently to have leave given by NCAT. A decision by a complainant to appeal to NCAT cannot by itself be used to draw a conclusion. Mr GHI said that he had contacted NCAT prior to requesting referral of his complaint and spoke to a representative who told and that he would be able to discontinue the matter at any point before the leave hearing without incurring costs. He had taken this information at face value. 2. Ms ABC had failed to notify him that she was being legally represented. Mr GHI stated that he had not received notification which was filed in the Tribunal, that Ms ABC was being legally represented. This was contrary to the requirements of the Tribunal. 3. There was no reason why Ms ABC should have been represented as she is an Australian-born English speaker with professional qualifications. She had not made a formal request for representation to the Tribunal. 4. Mr GHI also questioned as to whether Ms ABC had in fact incurred any legal costs. This was on the basis that he was not notified that Ms ABC had engaged a legal representative; the $3000 legal costs were only advised to him verbally; and the solicitor had a pre-existing friendship with Ms ABC which was concealed from Mr GHI. There was a lack of a clear economic case for Ms ABC to expend $3000 - given that Mr GHI had not sought monetary damages. Mr GHI stated that other friends of Ms ABC who provided supporting statements were prepared to provide false witness testimonies. He now considers any friend of Ms ABC to be under suspicion. Mr GHI had requested documentary evidence of Ms ABC incurring legal costs of $3000. He had not been given evidence of this. 5. Mr GHI referred to his offer to contribute $1000 towards Ms ABC's costs as a mutually binding confidential simple way to end the matter. The offer was made "without prejudice save as to costs." This had been rejected without counter offer. 6. Contrary to the assertions by Ms ABC's representative, Mr GHI considered that he had conducted his part of the proceedings in the manner intended to be least disadvantageous and even advantageous to Ms ABC. From the beginning he had expressed his intention to resolve his dispute with Ms ABC through dialogue or by mediation and not via an imposed decision - but he stated, "it takes 2 to tango". 7. After he had been informed of the decision by Ms ABC to ban him from the class, he had sought more information about the complaints which had not been brought to his attention and proposed constructive ways to resolve them. He had made this clear to the ADB in his complaint. Mr GHI stated that he did express the urge to resolve the matter by direct discussion with Ms ABC and to negotiate a mutually acceptable outcome. He sought nothing more than restorative justice; to continue the exercise classes that he enjoyed and to expose the fraudulent and sexist nature of any complaint that she made against him. He wanted Ms ABC and her staff to get proper training in dispute resolution. He never sought any cash settlement. The only compensation that he sought was free exercise classes. Ms ABC's reply to Mr GHI's submissions on costs 1. Ms ABC noted that Mr GHI had initially sought to reopen his complaint before the Tribunal on 25 October 2017 - after he had withdrawn it. He had not proceeded with this. Mr GHI had provided redacted submissions dealing with confidentiality which had put Ms ABC at a disadvantage in terms of section 60 (3) (a). Ms ABC said she was unable to enter into any proposed agreement with Mr GHI where he requested that she bind those who worked for her. Mr GHI's allegation of a friendship between Ms Gabriel and Ms ABC was irrelevant. 2. The matter was of great cause of concern to Ms ABC as it involved her professional livelihood. She had sought legal advice and representation to protect this. Ms ABC rejected allegations that there was a scam going on between Ms Gabriel and Ms ABC in relation to Mr GHI. Mr GHI's allegations of sexism against men were undermined by Mr GHI's reference to Ms Gabriel's son attending the classes. 3. In the matter of Kanan J.M v Australia Post and Telecommunications Union [1992] FCA 539;43 IR57 at 30 the court had awarded costs in relation to the claim that was always doomed to failure and in which the applicant had unreasonably instituted proceedings. Mr GHI had not provided evidence other than mere assertion that he had a tenable basis in law for his complaint. 4. Ms ABC characterised Mr GHI's pursuit of his complaint as a failure to accept rejection. Ms ABC was disinclined to enter into any agreement with Mr GHI because of his unreliable behaviour. 5. Ms ABC then sought further costs beyond those initially claimed, because Mr GHI had sent seven further emails to Ms Gabriel raising issues that were not pertinent to costs and containing false assertions. The costs had now increased. Ms ABC sought an amount of $5857.50 in costs. Submissions seeking restraining orders 1. Ms ABC's submissions also sought an order restraining Mr GHI from making an application for leave and an order restraining Mr GHI from corresponding further with Ms ABC and Ms Gabriel. The submissions did not refer to any power for the Tribunal to do this. Mr GHI's submissions seeking confidentiality 1. In his submission of 1 December 2017, Mr GHI requested the Tribunal not publish its decision on costs. Alternatively, Mr GHI requested that the Tribunal anonymise the names of all parties in any published decision as well as any referenced business names and individuals mentioned in quoted material from documents submitted as part of the section 60 application and responses. 2. Mr GHI stated: "ABC and I are both people with strong public identities, both being performers and both being business owners whose businesses are promoted over the internet, with our names being tightly coupled to our businesses." 1. Mr GHI said the reason for his application was that he did not wish there to be material on the internet concerning the NCAT matter with our personal names or business names that would be visible to search engines or though the Austlii website, that could be uncovered by prospective clients or the media. 2. Mr GHI stated that: "A business emergency manifested itself in the days before the leave hearing. My business partners urged me to discontinue my NCAT complaint to free up my time and mental focus to deal with this emergency and also to guarantee that there would be no publicised NCAT decision on the Internet that could risk collateral damage to our business and their personal financial interests. My business partners are innocent people who do not deserve to be adversely affected by this matter that has nothing to do with them." Ms ABC's submissions on confidentiality 1. Ms ABC's submissions of 7 December 2017 opposed the making of confidentiality orders. The submissions referred to the Guiding Principle under the Civil and Administrative Tribunal Act 2013 that the Tribunal facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Objects set out under sections 3(f) and 3(g) require that the Tribunal is accountable and has processes that are open and transparent. The Tribunal must promote public confidence in Tribunal decision-making and in the conduct of Tribunal members. The submissions referred to a number of cases dealing with confidentiality orders. 2. Mr GHI had made the complaint in his own name. His business name had not been raised during the proceedings. Ms ABC submitted that the principle of open justice is a fundamental tenet of the common law and should not be deviated from lightly. Ms ABC referred to matter of the State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 in which the Tribunal referred to the seven factors under the previous section dealing with confidentiality, equivalent of the current section 64. 3. In this matter, Mr GHI's request for confidentiality was based solely on his view that he has a strong public identity and the published costs order would be detrimental to his unspecified financial interests. Mr GHI's contention that he has a strong public identity was unsubstantiated. The case law made it clear that embarrassment alone is unlikely to be sufficient grounds to displace the principle of open justice. In the matter of Australian Careers Institute Pty Ltd v Australian Skill Quality Authority (2016) 70 AAR 276, the court stated that the circumstances of the case must be sufficiently strong to take the case out of the ordinary, before confidentiality orders should be made. In this matter there was nothing out of the ordinary in relation to Mr GHI's original complaint and his withdrawal of it. 4. In the matter of IMS FX Services Pty Ltd v ASIC (2016) 70 AAR 197 the applicant had argued, as had Mr GHI, that reputational damage may occur. However, in that matter the court found that reputational harm was not a sufficient reason for making a suppression order. The Tribunal's consideration of costs matter The Tribunal's power to award costs Costs provisions, section 60 Civil and Administrative Tribunal Act 2013, (CATA) 1. The relevant provisions dealing with the awarding of costs are set out in section 60 of the CATA. The general rule is that each party to proceedings is to bear their own costs: CATA s 60(1). 2. Costs may only be awarded if the Tribunal is satisfied that there are special circumstances warranting the award of costs: CATA s 60(2) - having regard to the matters set out in s 60(3) (a)-(g) of CATA. 3. The Tribunal sets out these matters below. Section 60 (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid…. 1. Ms ABC submitted that this was a matter such as In Kanan J.M v Australia Post and Telecommunications Union [1992] FCA 539;43 IR57 at 30. In that matter the court had awarded costs in relation to the claim "that was always doomed to failure" and in which the applicant had "unreasonably instituted proceedings". The Tribunal finds that in this matter it cannot be said that Mr GHI's claim was always doomed to failure in the absence of the hearing of the issues. There is also an entitlement for an applicant to make an application for leave under section 96. The Tribunal does not find that Mr GHI has unreasonably instituted proceedings. Tribunal's consideration of whether "special circumstances" exist 1. The Tribunal must be satisfied that special circumstances exist warranting departure from the rule that parties pay their own costs in the Tribunal. 2. The Tribunal sets out below an analysis of the factors set out in section 60(3) (a)-(g). 60 (3) (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, 1. Ms ABC noted that Mr GHI had provided a redacted submission which referred to an application for confidentiality - but which did not state the grounds. It was not until after the Tribunal set a further timetable for filing of confidentiality submissions that Ms ABC became aware of the reasons Mr GHI had made a confidentiality application. The Tribunal then wrote to the parties setting a timetable for the filing of submissions concerning confidentiality. The Tribunal finds that this did place Ms ABC at a disadvantage, in that she was not made aware of the reasons why confidentiality might be sought, and she then incurred extra costs in responding to the application. Did the Applicant unreasonably prolong the time taken to complete the proceedings in terms of section 60(3) (b) of CATA? 1. Mr GHI advised Ms ABC by email at 10.37pm approximately, on the night before his application for leave was to be heard, that he did not intend to pursue the application. It is reasonable to expect that Ms ABC would have undertaken preparation for the proceedings by this time. Ms ABC had engaged a legal advisor to draft submissions and appear at the scheduled leave hearing on her behalf. Ms Gabriel had filed a Notice of Appearance on 16 October 2017. It does not appear that she served this on Mr GHI. 2. Mr GHI then filed an application for confidentiality - but did not serve it. This caused the Tribunal to set a further timetable for the parties to file submissions. This prolonged the proceedings. The Tribunal considers this an unreasonable prolongation as Mr GHI had been required to file and serve all submissions. Ms ABC then incurred further costs in responding to this further timetable. 3. The Tribunal is satisfied that Mr GHI unnecessarily prolonged completion of the proceedings. Section 60(3)(c) no tenable basis in fact and 60 (3) (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance 1. Ms ABC argued that there had been no tenable basis in fact for Mr GHI's complaint and further that the complaint was lacking in substance. The Tribunal accepts that the Acting President of the ADB had declined the complaint as lacking in substance and provided reasons for this. The Tribunal notes that there was no new material before the Tribunal filed by Mr GHI in support of his application for leave to be granted to proceed. However, at the same time, the Tribunal had not considered the matter in substance and cannot then draw a conclusion about whether the matter had no tenable basis in fact or whether it was lacking in substance. 2. The Tribunal refers to the comments of Deputy President Hennessy in the matter of Aydemir v Redegalli [2011] NSWADT 198 at paragraph 16: "Withdrawal in these circumstances does not constitute a concession that the application lacked merit, nor can such an inference necessarily be drawn. In the absence of a hearing where findings of fact are made, and legal argument presented, it is not appropriate for the Tribunal to draw a conclusion as to the merits of the complaint." Section 60(3)(d) the nature and complexity of the proceedings 1. Ms ABC contended that the nature of proceedings was such that this constituted special circumstances. The Tribunal however does not consider that it can draw conclusions about the nature of proceedings without having heard the substance of the arguments. Section 60 (3) (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3) Section 36 of the CATA - Guiding Principle of Practice and Procedure in the Tribunal 1. Section 36 of CATA sets out the guiding principle to be applied to practice and procedure in NCAT with the Tribunal's bolding: Section 36 Guiding principle to be applied to practice and procedure (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. Tribunal's emphasis added. 1. The Tribunal's understanding of the interaction of these sections is that the parties and their representatives and the Tribunal itself have an obligation in their conduct to act with economy and to focus on the primary issues between the parties. 2. The Tribunal finds that the fact of Mr GHI withdrawing his complaint is not a special circumstance warranting the award of costs. The Tribunal ought not penalise applicants for withdrawing complaints. However, the Tribunal considers that parties who initiate legal proceedings should be aware that this may lead to all the parties incurring costs. Section 36 states that the "Guiding Principle" for this Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 36(3)(a) of the Civil and Administrative Tribunal Act 2013 places an obligation on the parties to proceedings to ensure this occurs. 3. Mr GHI referred in his submission to NCAT as a lower cost jurisdiction. It is clear that the parties themselves play a primary role in ensuring that this is so. Given the proceedings involved Ms ABC's livelihood and Mr GHI would have been aware of this, there was nothing unreasonable in Ms ABC seeking legal advice and representation. 4. Mr GHI's decision to advise of his intention to withdraw his application for leave in the proceedings after the close of business on the preceding day, did not conform with the requirements of section 36(1) or 36 (3). It did not assist "the just, quick and cheap resolution of the real issues." Ms ABC and Ms Gabriel had committed to being at the Tribunal on 25 October 2017 at the appointed time, in response to Mr GHI's application. Ms ABC had instructed Ms Gabriel to make submissions on the leave application and for Ms Gabriel to represent her on the day. Section 60(3) (g) any other matter that the Tribunal thinks relevant. 1. Ms ABC referred to advice she received of Mr GHI's intention to withdraw the application for leave at 10:37 PM on the night before the leave hearing. This was outside business hours and it cannot be expected that Ms ABC would have been aware of the withdrawal of the matter prior to the commencement of business hours on 25 October 2017. 2. Mr GHI has contended that he was not made aware that Ms ABC had sought legal representation. The Tribunal notes that there was a notice of appearance filed by Ms Gabriel dated 11 October and received in the Tribunal on 16 October 2017. Mr GHI said that he had not received a copy of this. The Tribunal accepts that Mr GHI was not aware that Ms ABC had sought legal advice and representation. However, the Tribunal considers that it is reasonable that Ms ABC had sought legal advice and representation in relation to the matter. It was clear that the complaint involved Ms ABC's livelihood. There was nothing disproportionate in Ms ABC obtaining legal assistance in the matter. 3. Mr GHI submitted that as he had not sought monetary compensation, he should not be liable to costs. It is clear however that Ms ABC was bound to defend the complaint - irrespective of the outcome sought. It was open for the Tribunal at hearing to find the complaint substantiated and to make a range of orders – including damages under section 108 of the ADA. Submissions seeking restraining orders 1. The submissions also sought an order restraining Mr GHI from making an application for leave. The Tribunal notes that is not in the Tribunal's power to restrain Mr GHI on this basis. Ms ABC also sought an order restraining Mr GHI from corresponding further with Ms ABC and Ms Gabriel. The submissions did not point to any power for the Tribunal to take these injunctive actions. These are orders that the Tribunal has no power to make. 2. The Tribunal declines to make these orders. Quantum of Costs 1. Section 60(5) defines costs as including costs of or incidental to "proceedings in the Tribunal". The proceedings now include a leave, a costs application and a confidentiality application. 2. Ms ABC's last submission dated 7 December 2017 seeks an order that Mr GHI pay her costs in the sum of $6957.50 - or any other order that the Tribunal sees fit. 3. In this respect, the Tribunal considers that the late notice of intention to withdraw the leave application caused Ms ABC to be liable for the costs of legal appearance at the leave hearing on 25 October 2017. The special circumstances arise not in respect of Ms ABC expending costs on obtaining legal assistance, but in the unreasonableness of the late advice which caused Ms ABC to be liable for the costs of Ms Gabriel's appearance on 25 October 2017. The Tribunal notes that Ms Gabriel's time sheet sets this out as 40 six-minute units. This is 240 minutes or 4 hours which Ms Gabriel charged at $275 per hour including GST. 4. The Tribunal calculates this as an amount of $1100 for work on 25 October 2017. 5. Mr GHI then served submissions on costs dated 15 November 2017 which included redacted submissions on confidentiality which formed a third of his submission. Ms ABC responded to Mr GHI's costs submissions and redacted submissions. The cost of drafting and settling these submissions for Ms ABC was 57 six-minute units. The Tribunal is satisfied that at least a third of the cost of drafting Ms ABC's submissions in reply, should be borne by Mr GHI as he did not comply with the Tribunal's directions to serve the submissions on Ms ABC. The Tribunal has determined it should award an amount of $1000 in respect of these costs. 6. The Tribunal set a further timetable arising out of the redacted confidentiality submissions. On 28 November 2017. Ms ABC then incurred a further 40 x six-minute units in costs. This is an amount of $1100. 7. The total is $3200 including GST. 8. The Tribunal is satisfied that special circumstances exist warranting the payment of a portion of Ms ABC's costs. Mr GHI gave late notice of intention to withdraw the application for leave; he put Ms ABC at a disadvantage by serving redacted submissions on her, prolonged the time taken to resolve the proceedings and did not comply with Tribunal directions that all submissions be filed in the Tribunal and served on the other party. This caused the Tribunal to set a further timetable for filing of submissions, raising costs to Ms ABC. 9. The Tribunal calculates those costs as an amount of $3200 including GST pursuant to section 60 (4) (a) of the CATA 2013 The Tribunal's consideration of application for confidentiality 1. The Tribunal is satisfied that the Civil and Administrative Tribunal Act 2013 stresses the need for openness and transparency in the Tribunal's proceedings. The Tribunal notes that Mr GHI has sought either that the costs decision not be published or that relevant names be suppressed. Ms ABC has opposed both contentions. 2. The relevant provisions are set out in section 64 of the CATA 2013. 3. Section 64 provides: (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal …. 1. The Tribunal is satisfied that the interests of open justice are served by publication of the Tribunal's costs decision. 2. The Tribunal notes that the application for leave was withdrawn from the Tribunal and that no evidence was heard, or decision made about the substantive complaint. The arguments in relation to costs and confidentiality reveal details of the complaint made. That complaint was declined by the Acting President of the ADB. Publication of the names of Ms ABC, DEF and Mr GHI in context of the now withdrawn leave application, may cause prejudice to the parties with no opportunity to argue their case. 3. In the circumstances, the Tribunal is satisfied that the interests of open justice are served by publishing the costs decision, without publishing the names of Ms ABC, DEF or Mr GHI – other than to the parties. In this way the reasons for and the principles underlying the award of costs and this confidentiality order remain transparent. 4. The Tribunal orders under section 64 (1) (a) of CATA 2013 that the names of Mr GHI, Ms ABC and DEF not be published – other than to the parties. Orders 1. The Tribunal orders that Mr GHI pay Ms ABC the amount of $3200 (including GST) in costs pursuant to sub section 60(4)(a) of the Civil and Administrative Tribunal Act 2013 within 21 days of the date of publication this decision. 2. The Tribunal makes an order pursuant to section 64(1) (a) of CATA 2013 that the names of Mr GHI, Ms ABC and DEF not be published in any reporting of the matter – other than to the parties themselves. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 January 2018